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Tryon v. City of North Platte Nebraska

Supreme Court of Nebraska

February 3, 2017

Donna Tryon and Ryan Sellers, appellants.
City of North Platte, Nebraska, ET AL., APPELLEES.

         1. Motions to Dismiss: Appeal and Error. A district court's grant of a motion to dismiss is reviewed de novo.

         2. ___: ___. When reviewing an order dismissing a complaint, the appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff's conclusions.

         3. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face. In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim.

         4. Actions: Pleadings: Notice. Civil actions are controlled by a liberal pleading regime; a party is only required to set forth a short and plain statement of the claim showing that the pleader is entitled to relief and is not required to plead legal theories or cite appropriate statutes so long as the pleading gives fair notice of the claims asserted.

         5. Actions: Pleadings. The rationale for a liberal notice pleading standard in civil actions is that when a party has a valid claim, he or she should recover on it regardless of a failure to perceive the true basis of the claim at the pleading stage.

         6. ___: ___ .A plaintiff's allegations do not need to be set forth as a separate claim in the complaint to sustain a cause of action. 7. Motions to Dismiss. Even novel issues may be determined on a motion to dismiss for failure to state a claim where the dispute is not as to the underlying facts but as to the interpretation of the law. [295 Neb. 707]

         8. Motions to Dismiss: Records. As a general rule, important questions of novel impression should not be decided on a motion to dismiss when the underlying facts are unclear and development of the record will aid in resolving the legal issues.

         Appeal from the District Court for Lincoln County: Donald E. Rowlands, Judge. Reversed and remanded for further proceedings.

          J.L. Spray and Ryan K. Mcintosh, of Mattson Ricketts Law Firm, for appellants. Douglas L. Stack for appellee City of North Platte.

          David Pederson, of Pederson & Troshynski, for appellees Trent Kleinow, Dr. James Smith, and Priority Medical Transport, L.L.C.

          Heavican, C.J., Wright, Miller-Lerman, Stacy, Kelch, and Funke, JJ.

          FUNKE, J.


         Donna Tryon and Ryan Sellers (collectively appellants) appeal from a district court order dismissing with prejudice their amended complaint. Appellants seek to invalidate a contract between the City of North Platte, Nebraska (North Platte), and Priority Medical Transport, L.L.C, because North Platte provided insufficient notice of its conflict of interest with Priority Medical Transport before awarding the contract. We conclude the court erred in dismissing appellants' amended complaint, because it contains causes of action under both Neb. Rev. Stat. § 84-1411 (Reissue 2014) of the Open Meetings Act and Neb. Rev. Stat. § 49-14, 102 (Cum. Supp. 2016) of the Nebraska Political Accountability and Disclosure Act. Therefore, the court's order dismissing appellants' amended complaint is reversed, and the cause is remanded for further proceedings. [295 Neb. 708]


         Priority Medical Transport is an ambulance company owned, in two-thirds part, by two employees of the North Platte Fire Department: Trent Kleinow-the assistant fire chief-and Dr. James Smith-the medical director. (Priority Medical Transport. Kleinow, and Smith are hereinafter collectively referred to as "Priority Medical.") In July 2015, Priority Medical applied for a $500, 000 grant from the North Platte Quality Growth Fund (Quality Growth Fund). The Quality Growth Fund Citizens Review Committee (CRC) reviews Quality Growth Fund applications and provides recommendations to the North Platte City Council (City Council) on what Quality Growth Fund applications should be approved.

         The CRC met, ad hoc, to consider Priority Medical's application. Despite that the application was for a $500, 000 grant, the CRC provided a recommendation to the City Council to provide Priority Medical a $350, 000 loan. Priority Medical did not revise or refile its application with the Quality Growth Fund to reflect the changes. At its July 2015 meeting, the City Council awarded Priority Medical the $350, 000 loan contract.

         Appellants filed a complaint in August 2015 alleging that both the CRC and the City Council violated § 49-14, 102 by failing to award the contract through an open and public process. Appellants alleged that both the CRC and the City Council provided "bare legal notice" of their meetings. However, appellants specifically contended that neither body provided notice that the contract to be discussed concerned a business owned by public employees. Appellants' complaint neither quoted nor attached the notices provided by the CRC or the City Council.

         The court dismissed appellants' complaint without prejudice for failure to state a claim upon which relief could be granted, but allowed them leave to file an amended complaint. The court specifically instructed appellants to make paragraph 28 of their complaint more specific to allege how § 49-14, 102(2) was violated. [295 Neb. 709]

         In November 2015, appellants filed an amended complaint that made substantive changes only to paragraph 28 and again did not include the CRC or the City Council notices or their language. In response, North Platte and Priority Medical (hereinafter collectively appellees) both filed motions to dismiss, under Neb. Ct. R. Pldg. § 6-1112(b)(6), for failure to state a claim upon which relief could be granted. Appellees argued that appellants' admission that North Platte provided "bare legal notice" of the City Council meeting in paragraph 28 showed that North Platte complied with § 49-14, 102's notice requirement for an open and public process as a matter of law.

         The court dismissed the case with prejudice, explaining that "Plaintiffs cannot amend their Complaint to state a cause of action against any of the ...

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